The “armies of lawyers” stories are coming earlier this election season.
The Court’s order is here, breaking along ideological/party lines.
I expected this. See my earlier post, Alabama Goes to Supreme Court to Reverse Lower Court Orders Making Voting Easier During Pandemic (and I Expect Alabama Will Win)
These changes are coming close to the election, so they implicate the Purcell principle. But beyond that, they show the conservative majority on the Supreme Court is not going to put a thumb on the scale favoring voters in this election and instead will view the pandemic-created dislocations in the voting process as not enough of a reason to depart from usual voting rules when states fail to bend their rules to accommodate voter safety and convenience during the pandemic. It is of a piece with the 5-4 decision in RNC v. DNC.
I explore these themes, and the increasing party divide in the courts on the COVID cases, in Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them (manuscript under review) (June 2020 draft available) (forthcoming Election Law Journal). This is what I wrote there about RNC v. DNC:
Beyond the sloppiness, and most troubling, is the cavalier nature of the Supreme Court’s opinion. It ignored the pandemic and treated the situation as ordinary litigation in an ordinary time. It failed to even mention the voting rights that the plaintiffs were seeking to vindicate. The opinion sent a message that the Court cares little about the voting rights of people in the state, especially AfricanAmerican voters in Milwaukee who had been facing great risk related to the virus.
In this extraordinary time of a pandemic, the Supreme Court chose to vote remotely for safety reasons while denying some Wisconsin voters a chance to do the same. Not only did the Court’s opinion show a nonchalance about the importance of voting rights in the most dire circumstances. It demonstrated that the Court majority could not build a bridge for a unanimous compromise opinion. The signal it sends is that there may well be have partisan warfare at the Court over election issues in the upcoming election, which is already shaping up to be one conducted under conditions of deep polarization and a pandemic.
John Nichols for The Nation.
Under pressure to combat the disinformation that politicians — most notably the president of the United States — are spreading on its platforms, Facebook recently announced a new effort to combat lies geared in particular toward misleading Americans about voting.
Disinformation aimed at voting is a particularly pernicious form of it, especially right now. These days much of it is designed to cripple efforts to expand vote-by-mail, at a time when more and more Americans want to avail themselves of it so they can vote safely during a pandemic.
President Trump has been lying relentlessly about vote-by-mail for weeks, in an obvious effort to dissuade localities from scaling up for more mail voting, because he believes more people voting this way makes his reelection less likely.
Unfortunately, even though Facebook is vowing a vigorous effort to clean up information about voting, it is unlikely to do much to prevent Trump from spreading his lies about vote-by-mail in particular.
Two candidates for Congress in New Jersey today asked a federal court to declare the state’s restrictions on campaign slogans unconstitutional. The Institute for Free Speech is representing the candidates, Eugene Mazo and Lisa McCormick, in the First Amendment challenge.
“New Jersey’s regulation of campaign slogans is one of the country’s most blatant violations of candidates’ right to free speech. The state effectively allows groups to register slogans just to prevent candidates from using them. Campaigns must be allowed to speak to voters in their own words and with their own slogans,” said Institute for Free Speech Attorney Ryan Morrison.
New Jersey law allows candidates in primary elections for Congress to include a slogan of up to six words next to their name on the ballot. The law, however, prohibits slogans from naming or referring to any other person or any incorporated entity in New Jersey, unless the candidate receives their permission. This has fueled a competition in the state to incorporate entities in order to own the rights to their names for ballot slogans and exclude others from using them.
Eugene Mazo is a law professor who is seeking the Democratic nomination to the U.S. House of Representatives in New Jersey’s 10th Congressional District. Mazo submitted three slogans, but all were rejected by the state because each named an incorporated entity in New Jersey. To avoid having no slogan appear on the ballot, Mazo did what other candidates do: he registered corporations of his own in the state, named after slogans he wished to use. “I have studied American democracy as a scholar, a voter, and now as a political candidate. And what I can tell you is that New Jersey’s ballot restrictions are unconstitutional. Simply put, they violate the First Amendment. My goal in filing this lawsuit is to create an equal playing field for candidates of diverse political views who believe, as I do, that free speech is sacred. Under our Constitution, New Jersey has no right to regulate what a political candidate can say to his or her voters,” said Mazo.
Lisa McCormick is a small business owner who is seeking the Democratic nomination for the House in New Jersey’s 12th Congressional District. State officials denied her choice of slogan – “Not Me. Us.” – because McCormick did not have permission from the incorporated entity organized in New Jersey under that name. A second slogan naming Bernie Sanders was also denied because she did not have Sanders’ permission to use his name. Ultimately, McCormick was able to secure permission to use the slogan, “Democrats United for Progress.” Candidates have the right to use the rhetoric and language of their choice in their slogans. Yet New Jersey’s law allows anyone to claim ownership of a slogan simply by incorporating an entity under that name. This system is unwise and unconstitutional. The case is Mazo and McCormick v. Way, et al. It is before the United States District Court for the District of New Jersey, Newark Division. Mazo and McCormick are represented by attorneys from the Institute for Free Speech and Walter M. Luers. To read the complaint, click here.
Voting in Texas has never been easy. Join the Texas Observer for a discussion of the voting challenges in Texas ahead of the July runoffs.
About this Event
Voting in Texas has never been easy. But with a pandemic and civil uprising sweeping across the United States, Texans may need to brace for even more chaos than usual. Important runoff elections for a U.S. Senate seat (and other offices) take place on July 14, with early voting starting on June 29 and ending on July 10. What can voters expect to face as they try to go to the polls in Texas—a state with a long history of voter suppression? How limited will mail-in voting be, as fights against expansion are waged in the courts? What other impacts might the onset, and second wave of COVID-19 deliver?
Texas Observer civil rights reporter Michael Barajas will tackle 2020 voting questions in conversation with national elections expert Rick Hasen, author of Election Meltdown, Joaquin Gonzalez, an attorney who monitored polls and complaints for the Texas Civil Rights Project, Clarice Caldwell, a teacher and voter in San Antonio, and Joshua Muhammad, a PVAMU alum, former individual plaintiff, and current Chairperson of organizational plaintiff The Panther Party.
The Supreme Court (having already turned down emergency relief related to the Texas primary) has rejected early consideration in the case arguing that giving only voters over the age of 65 the ability to vote by mail without excuse violates the 26th Amendment.
The case will be back before the 5th Circuit, and at least theoretically could be back on another emergency petition before the Supreme Court before the November election.
Josh Douglas on lessons from the Kentucky primary.
Former Vice President Joseph R. Biden Jr. and the Democratic Party outraised President Trump and the Republicans for the second straight month in June, announcing a record haul of $141 million on Wednesday night only hours after Mr. Trump’s campaign had trumpeted his own $131 million total.
Both of the presidential candidates’ hauls represented huge spikes from May, when Mr. Biden raised $80.8 million and Mr. Trump $74 million.
The totals were impressive in different ways. For Mr. Biden, the huge sum represented a reversal after he had struggled with fund-raising for much of the primary campaign, as well as a signal that the party’s donors, big and small, have united behind him. For Mr. Trump, it showed the durability of his financial supporters, who delivered his strongest month yet despite a turbulent June and polling showing him trailing Mr. Biden badly.
Last week, a Ukrainian lawmaker who was once affiliated with a pro-Russian political party and has met with Giuliani released 10 edited snippets of what appeared to be Biden’s official vice presidential phone calls in 2016 with Petro Poroshenko, then the president of Ukraine. It was the second cache of recordings the lawmaker, who studied under the KGB in Moscow in the early 1990s, has released since May.
The recordings show that Biden, as he has previously said publicly, linked loan guarantees for Ukraine to the ouster of the country’s prosecutor general. The tapes do not provide evidence to back Giuliani’s long-standing accusation that Biden sought to have him fired to block an investigation of a gas company that had hired his son Hunter.
The authenticity of the audio files, which appear heavily edited, could not be verified. The Ukrainian government is investigating how they were obtained. Biden’s campaign has said they are part of an effort to concoct conspiracy theories to smear him. Poroshenko has gone further and called them fake.
Amid ongoing uncertainties about coronavirus and with the Aug. 4 primary approaching, Michigan is seeing a surge in new voter registrations and requests for absentee ballots.
Secretary of State Jocelyn Benson’s office provided data Wednesday showing that local clerks across Michigan have received a total of more than 1.3 million requests for absentee ballots.
The data shared with the Free Press also indicated more than a million absentee ballots have already been sent out.
That’s about 3½ times the number of applications received and ballots issued ahead of the August primary in the last presidential election cycle in 2016. …
Benson’s office also reported a surge in new voter registrations after seeing numbers drop off sharply during the height of the coronavirus outbreak in Michigan.
During April and May, there were just 12,887 new voter registrations across the state, far less than the 41,222 new registrations recorded in the same period in 2016.
But there were 35,278 new registrations in June, a significant gain on the 23,519 recorded in June 2016.
Good Bill Galston piece in the WSJ today (behind a paywall, I assume). Here’s an excerpt of one suggestion Galston makes:
Beyond these steps, America’s elder statesmen must do all they can to ensure election integrity. Former Presidents Bill Clinton and George W. Bush should spearhead the formation of a bipartisan committee including respected figures such as former Senate Majority Leaders Tom Daschle and Trent Lott, former Secretaries of State Madeleine Albright and Condoleezza Rice, and former Secretaries of Defense Leon Panetta and Robert Gates, along with lawyers and election experts from both parties who have served in previous presidential campaigns. Committee staff should be ready to investigate charges of fraud as soon as they arise and observe the counting of mail-in ballots if asked. Committee leaders should announce their findings as quickly as accuracy permits and stand united in their defense.
Among the committee leaders’ most important tasks would be meetings soon after Labor Day with Senate Majority Leader Mitch McConnell and House Speaker Nancy Pelosi. These leaders should be asked for a public pledge to stand together against unsubstantiated claims that the election has been stolen and to do their utmost to persuade elected officials in their respective parties to stand with them.
You can read it here.
Back on May 25, I wrote In Detailed and Thoughtful Opinion, Federal Court Holds Florida Law Requiring Ex-Felons to Repay Fines Before Restoration of Voting Rights Unconstitutional for Those Who Cannot Afford to Pay and Those Who Cannot Know How Much They Owe.
The case was expedited for appeal before the 11th Circuit, but now comes news that not only has the 11th Circuit taken the rare step of deciding this case en banc (by the full court); it has also put the district court’s ruling on hold. This could well signal a reversal, and the potential that a number of felons will remain disenfranchised in Florida at the time of the November election.
Eliza Newlin Carney for The Fulcrum.
The following is a guest post from Chris Warshaw, a political scientist at George Washington University:
On November 3, 2020, voters across the country will go to the polls to cast their ballots for President, among other local, state, and federal offices. In thirty-four states and the District of Columbia, they will—if they choose to—be able to vote by mail without providing any excuse for needing to do so. In nine states, they will only be able to vote by mail if they are able to provide a valid excuse for needing to vote by mail. And in seven states—Indiana, Kentucky, Louisiana, Mississippi, South Carolina, Tennessee, and Texas—older voters are permitted to vote by mail without an excuse, while all other voters must provide an excuse to do so.
In Texas, that latter category of access to vote by mail was recently challenged as violating the Twenty-Sixth Amendment, which states that “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” This case will soon be heard in the Fifth Circuit, and possibly, the United States Supreme Court as well.
Whether or not it is constitutional to provide more or fewer voting options to voters based on their age, the demographic implications of providing no-excuse mail voting to only older voters extend beyond preferencing just a voter’s age. It also has differential effects across racial and ethnic groups. White Americans tend to be much older than members of other racial and ethnic groups. Across the nation, about 24% of Whites are 65 or older, while only 15% of Blacks and 12% of Hispanics are senior citizens. This means that older Americans are much whiter than the general population. Non-Hispanic Whites constitute about 68.5% of the nation’s citizen voting age population. But over 79% of senior citizens are White.
These racial disparities are magnified in the six states where only older citizens are allowed to cast no-excuse absentee ballots. In Texas, for example, non-Hispanic Whites are about twice as likely to be 65 or older as Blacks or Hispanics. In South Carolina, Whites are over 2.5 times more likely be senior citizens than Hispanics. In Tennessee, Whites are nearly three times more likely to be over 65 as Hispanics. More detailed state-level data on racial disparities between all voting age citizens and older citizens are here.
The racial disparities across age groups mean that voting rules which make it easier for senior citizens to vote than younger Americans inevitably advantage White voters relative to Blacks, Hispanics, and other racial groups. This means that elections in Indiana, Louisiana, Mississippi, South Carolina, Tennessee, and Texas are inherently biased against racial minorities. This could mean that these rules fall afoul of the Voting Rights Act. At a broader level, these rules harm democratic representation. They are probably skewing election outcomes in these states, and possibly downstream policy outcomes as well, in favor of the preferences of Whites. These racial biases are likely to be magnified in 2020 because many voters may be deterred from voting-in-person due to fears of being infected with Covid-19.
 I used the 2014-2018 5-year sample of the American Community Survey to analyze the age distribution of voting age citizens across racial groups.
 Under Kentucky law, a voter may vote by mail if “on account of age, disability or illness, [the voter] is not able to appear at the polls on election day may vote by a mail-in absentee ballot.” See Kentucky Revised Statutes § 117.075(1). Because the statute does not explicitly provide an age floor for qualifying for a mail-in ballot, I used age 65 in the chart for Kentucky for illustrative purposes.
For months, Republican leaders in Texas resisted calls by Democrats to allow widespread mail-in voting, more swayed by President Trump’s concerns about mail-ballot “fraud” than by the threat the coronavirus might pose at polling places.
The pandemic would have run its course by the time voting began, they believed. The election had been postponed, after all, and would not take place until long after Gov. Greg Abbott had embarked on an aggressive reopening of the state.
But the virus did not go away, and instead has surged in Texas, catching Mr. Abbott off guard. And as early voting began on Monday in statewide primary runoff contests, local election officials were scrambling to make polling sites as safe as possible.
The Macon Telegraph reports.
A law prohibiting obstruction of Congress does not apply to schemes targeting the House’s Office of Congressional Ethics, a federal appeals court declared Tuesday.
The D.C. Circuit Court of Appeals issued the ruling as it upheld a broader criminal case against David Bowser, who served as chief of staff to Rep. Paul Broun (R-Ga.)
You can download it at this link. When the full symposium issue on the 19th Amendment posts, I’ll provide a link to that as well.
A group of civic-minded organizations have joined together to recruit thousands of volunteers to work the polls this November, as states grapple with how the coronavirus pandemic could affect voting in the fall.
The nonprofit organizations and businesses behind the new effort, “Power the Polls,” are Civic Alliance, Comedy Central, Fair Elections Center, Levi Strauss & Co., Patagonia, Time To Vote, Pizza to the Polls, MTV, Uber and We Can Vote. The groups seek to get as many as 250,000 people to help keep in-person elections running as safely and efficiently as possible this fall.
When voters cast a ballot in person in New Jersey, they are required to sign a poll book to match their signature to election records. The same is true of mail-in ballots, and election officials check the ballot to make sure the signatures match.
During the state’s primary on July 7, election officials will notify voters if they reject a ballot because of a signature mismatch. Burns said it was not only a way for voters to ensure their vote is counted, but also functions as a warning that another person may have attempted to vote fraudulently in their name.
UC Irvine’s Hasen said the security measures used in New Jersey were likely enough to raise the suspicion of authorities. “Even on this small scale, what you see is that having a conspiracy like this to try to affect the outcome of an election is very difficult to do without detection.”
Burns suggested the rare instances of election fraud are not typically committed by individual voters themselves but rather organized groups.
“This is not a voter fraud issue,” she said. “It’s crimes being committed against voters.”
Hasen emphasized that the Paterson case shows how difficult carrying out the kind of widespread fraud Trump insists is possible.
“Imagine trying to swing the outcome of a presidential election, how many people you would have to get involved or how many ballots you would have to try to intercept without detection in order to try to have a meaningful impact on races that are typically decided by tens of thousands of votes if not more in a particular state,” said Hasen.
A new lawsuit filed by the Trump campaign and the Republican National Committee seeks to block the use of drop boxes for Pennsylvania voters to submit their mail-in ballots.
The lawsuit, announced Monday, alleges that by letting voters submit their mail ballots at locations other than at their county board of elections’ offices or through the mail, election officials ran afoul of state law. It also claims that the use of drop boxes in Pennsylvania’s primary amounted to a violation of the U.S. constitution.
“Upending our entire election process and undermining ballot security through unmonitored by-mail voting is the single greatest threat to free and fair elections,” the lawsuit claims.
Not every Pennsylvania county set up drop boxes for voters, but many did, particularly as concerns grew that voters weren’t receiving their ballots in time for them to be returned by mail.
Election officials in several other states also set up mail ballot drop boxes for their spring and summer primaries, during which absentee voting skyrocketed due to the pandemic. The use of drop boxes is also common in states that had widely-used absentee voting or mail-in voting operations prior to the pandemic, and some of those states require the use of drop boxes in a way that maximizes convenience for voters.
Good quote in an article entitled “The waiting game: Slow vote-counting in primaries could foreshadow November chaos:”
The National Association of Secretaries of State told Fox News that “the likelihood of delayed election results in November due to increased absentee and voting by mail during COVID-19, will vary by state and is an important voter education issue states are working to address.”
But the group emphasized that “slower results should not be considered harmful to the democratic process, but instead shows the commitment state and local election officials have to getting the outcome right.”
That’s right. Faxing.
The view from Canada.
Campaign Legal Center (CLC) filed a complaint with the Federal Election Commission (FEC) today over its delay in enforcing the Federal Election Campaign Act’s (FECA) requirement that a group whose “major purpose” is supporting the re-election campaign of Senator Joni Ernst register with the FEC.
The complaint seeks FEC action on an administrative complaint CLC filed with the agency last year, alleging that Iowa Values, “a 501(c)(4) nonprofit, violated the Federal Election Campaign Act (“FECA”) by failing to register as a political committee and failing to report its contributions, expenditures, and debts.”
The administrative complaint was filed over 190 days ago, and the agency has yet to take action. Meanwhile, Iowa voters still have little information about a group that has a self-described mission to, “[H]ighlight the work of Sen. Joni Ernst.” Voters have a right to know the identity of wealthy special interests seeking to influence our elections.
The Wisconsin Supreme Court announced Tuesday it would hear arguments over who should remain on the state’s voter rolls in late September at the earliest — the latest sign the court won’t decide the case until after the presidential election.
In a 5-2 order, the justices wrote that they would hold arguments as part of the court’s regular schedule and would not do so before Sept. 29. With arguments so late in the fall, it appears unlikely the court would rule before the Nov. 3 election — a point the dissenters noted.
More than 18,000 Floridians who voted by mail in March’s presidential primary did not have their votes counted, according to an analysis done by a group of national elections experts and academics.
The numbers of uncounted mail ballots, while relatively small, could prove crucial come November in a state known for razor-thin margins and at a time when voters are migrating in greater numbers to mail ballots amid the coronavirus pandemic.
Elections officials in Florida and elsewhere need “a massive education campaign” about how to properly navigate the mail ballot process, said Nathaniel Persily, a Stanford law professor and the co-director of the Stanford-MIT Healthy Elections Project, which brings academics and elections administration experts together to discuss best practices to address the threat of the virus….
Persily said new voters and those who have not previously voted by mail may not understand all the instructions and rules that go with it.
“This is the election version of baptism by fire,” Persily said of the large numbers of voters expected to vote by mail for the first time come November.
Daniel Smith, a University of Florida political science professor who specializes in elections, has previously found that mail ballots are more likely to be rejected than ballots cast in person. His research has found that rejection rates varied widely by county, which he has said suggests non-uniformity in how county elections officials verify signatures and other details on mail ballots.
The Senate will incorporate the annual intelligence policy legislation into the National Defense Authorization Act — but only after stripping language from the intelligence bill that would have required presidential campaigns to report offers of foreign election help.Sen. Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee, said Tuesday that Senate Republicans forced the removal of the election reporting provision as a condition to include the intelligence bill on the must-pass defense policy legislation.
Earlier this month, the Senate Intelligence Committee approved an amendment on an 8-7 vote from Warner and GOP Sen. Susan Collins of Maine, which added a provision to the Intelligence Authorization Act requiring campaigns to notify federal authorities about offers of foreign election help.That bill, however, was unlikely to get Senate floor time on its own, which is why it’s being included in the National Defense Authorization Act. The effort to strip the foreign election help provision from the intelligence bill was not a surprise, as acting Senate Intelligence Chairman Marco Rubio, a Florida Republican, predicted earlier this month it would be removed before the bill was on the floor, because of an objection from the Senate Rules Committee.
Now that results are coming in for Kentucky’s primary last week, this line in a local report is worth noting:
Blevins says no absentee ballots were rejected due to signatures not matching those on file. But he says quite a few were rejected for not having signatures on both the inner and outer envelopes.
As those of writing about the absentee ballot process always point out, the rejection rate for these ballots — especially among those voting absentee for the first time — is much higher than for in-person voting. That’s because the absentee ballot process includes various procedural requirements (which vary by state) with which voters must comply to ensure the ballots are valid. When the official tallies are complete, it will be worth keeping an eye on this rejection rate.
You can find the opinion, authored by Judge Edith Jones, at this link. The court found no liability under Section 2’s result’s test and rejected the district court finding of intentional racial discrimination. Judge Duncan, concurring in the judgment, believed there was no standing to even bring the suit.
The NAACP LDF’s statement is here.
David Corn for Mother Jones:
Edward Foley has a nightmare. It’s a poli-sci horror tale. A professor of constitutional law and elections expert at The Ohio State University’s Moritz College of Law, Foley foresees a scenario for the coming election that could tear apart American democracy.
Peer ahead to election night and imagine a close contest between Donald Trump and the Democratic presidential nominee, so close that the results in Pennsylvania will decide the winner. As the evening proceeds, Trump is narrowly ahead in the Keystone State, with the news networks tallying the incoming votes. When 100 percent of the precincts report, Trump is up by 20,000 votes, and he tweets: “The race is over. Another four years to keep Making America Great Again.” But hold on. The next day—and in the days ahead—as the counting of absentee and provisional votes occurs in routine fashion, Trump’s lead declines. The election is being stolen, Trump proclaims. His devotees take to the streets. The final result comes in: The Democrat triumphs by several thousand votes. “THIS THEFT WILL NOT STAND,” Trump tweets, and he declares political war.
In a 55-page law review article published last year, Foley depicts in granular detail what could happen at this point, if Trump and the Republicans opt to challenge the Pennsylvania results. Here’s a spoiler: It’s a damn mess with no clear outcome. And this one case study of how the 2020 presidential race could become a disaster has caught the attention of academics, former government officials, and policy advocates who have been banding together in different forms to try to address the many ways the election might be disrupted or contested.
Jerry Goldfeder and Nick Reade in NYDN.
As she heads into the heart of her first re-election campaign, Rep. Katie Porter of Irvine is quickly becoming a power broker in the House of Representatives.
She’s a Democrat in a flip district that still leans slightly red. But Porter is confident enough in her re-election chances that she’s announced the launch of her own “leadership PAC,” a political action committee that lets her raise and spend money separate from her own campaign fund, including for candidates other than herself.
These PACs have drawn criticism from ethics watchdogs and others over the years because they have fewer restrictions and less oversight than campaign funds. A majority of House Democrats and Republicans have them anyway, though many launch them quietly. And they’re less common among freshman members in potentially competitive races, such as Porter’s 45th District seat.
But through her leadership PAC, Porter can leverage her rising national profile and solid fundraising chops to help elect other progressive candidates who are facing tough races across the country. That, in turn, could mean more friends — and power — along the way.
New piece in the ABA Journal from Jason Abel.
President Donald Trump’s re-election campaign, the national Republican Party and four Pennsylvania members of Congress sued Monday to force changes to how the state collects and counts mail-in ballots under revamped rules.
The federal lawsuit filed in Pittsburgh claims that as voters jumped to make use of the greatly broadened eligibility for mail-in ballots during the June 2 primary, practices and procedures by elections officials ran afoul of state law and the state and federal constitutions.
It claims the defendants, which are the 67 county election boards and Secretary of State Kathy Boockvar, “have inexplicably chosen a path that jeopardizes election security and will lead — and has already led — to the disenfranchisement of voters, questions about the accuracy of election results, and ultimately chaos” ahead of the Nov. 3 general election.
A spokeswoman for Boockvar, a Democrat, declined comment about the litigation, as did the head of the County Commissioners Association of Pennsylvania, whose members administer elections.
The head of the Pennsylvania Democratic Party called the lawsuit an effort to suppress votes as a campaign tactic, noting Democrats far outpaced Republicans in getting their voters to apply for mail-in ballots ahead of the primary.
“Statewide vote-by-mail was a bipartisan proposal passed by Republican majorities in Harrisburg,” said Sinceré Harris, the state Democrats’ executive director.
Nate Persily and Charles Stewart for The Atlantic.
This is mostly a loss for the plaintiffs in these cases, as the appeals court rejected many (though not all) of the challenges to Wisconsin election law. There is a small victory on student ids and a chance to litigate more over how Wisconsin handles the voter id process for voters having trouble getting ids. But overall this is a very voter-unfriendly decision (and I say that not necessarily because of the holdings but because of the dismissiveness of the panel’s approach to voting rights issues and what it means for future challenges).
This appeal is complicated: it comes from two separate cases where various election laws were challenged as unconstitutional, a violation of the Voting Rights Act, or both. Some of the decisions of the lower court judges were inconsistent, and some of the issues, came up to the 7th Circuit in earlier challenges to the voter id aspects of the law. Judge Easterbrook, as is his style, gives breezy and superficial treatment to many of these voting issues, making the three year delay in a unanimous case all the more inexplicable.
The opinion starts out with a very troubling discussion of Judge Adelman’s findings that some of these restrictive Wisconsin voting laws were passed with racial and partisan animus. The 7th Circuit found little direct evidence of racial discrimination and then suggested, in a very troubling way, that making it harder to vote on the basis of party is perfectly acceptable. (“If one party can make changes that it believes help its candidates, the other can restore the original rules or revise the new ones. The process does not include a constitutional ratchet.”). In support of this terrible idea, Judge Easterbrook cites the Rucho case from the Supreme Court, which held that there are no judicially manageable standards to separate permissible from impermissible consideration of party in redistricting. But that did not carry over into voting rules, like rules for early voting, and the Supreme Court has never held that partisan animus provides a legitimate basis for discriminatory voting rules.
Making matters even worse, Judge Easterbrook dismisses without analysis the argument that discriminating against Democrats when so much of the party is made up of racial minorities can in some circumstances be a form of racial discrimination. (“The record does not show that legislators made any of the changes because Democratic voters are more likely to be black (or because black voters are more likely to support Democrats). The changes were made because of politics.”).
Judge Easterbrook also dismissed age discrimination arguments under the 26th amendment in a short few sentences. Almost as quickly, the court rejected arguments under the Voting Rights Act that cutbacks on early voting opportunities discriminated against minority voters. More generally, the court criticized the district court for viewing election changes in isolation, viewing Wisconsin’s law overall as providing many opportunities to vote easily.
In one good part of the opinion, the court held that students can vote with an expired student id, or at least that’s how it appears from the court’s opinion. [This part has been corrected.]
Two lower courts had required Wisconsin to provide a way of dealing with voters who lacked the ability to easily get a valid id for voting. The court rejected both injunctions but gave one of the courts on remand a chance to rewrite the injunction so that it would both protect voters and give the state flexibility as it worked out the details of its system.
It’s pretty clear overall that the judge thought more of Judge Peterson’s analysis than Judge Adelman (who has been mildly admonished for his writings on the partisanship of the Supreme Court). The 7th Circuit said the cases should be consolidated in front of one judge (the court didn’t say which one) so that there won’t be more inconsistent rulings.
[This post has been updated.]
I have written this piece for the New York Times Sunday Review (part of their “The America We Need” series on inequality). It begins:
What if we made voting an agent of equality, not inequality? And how can we get there?
If you are a college student or a working recent high school graduate, poor, Latino, or someone who moves more frequently, you are less likely to vote. Seniors are much more likely to vote than young people, in some elections at twice their rate. Those with college degrees vote in higher numbers than the less educated. Minority voters are more likely to wait longer in line to vote in person, sometimes for hours, and they, young people, and first-time voters are more likely to have an absentee ballot rejected for nonconformity with technical rules. Poor voters are less likely to have the time off work to vote at all, much less wait in a long line to vote. Voters in big cities, who tend to be younger, poorer and browner, have coped with more serious election problems than others in voting in person and by mail during our coronavirus-laden primary season, like the voters in Milwaukee voters who saw 175 out of 180 polling places closed during the April 7 Wisconsin primaries.
In a democratic system, we expect our elected officials to be responsive to the views and interests of the voters. If the universe of voters — and, of course, campaign donors — is skewed toward older, wealthier, better educated whiter voters, political decisions will be as well. We need equality in voting rights and turnout to assure responsive representation and social policy that reflects everyone’s needs, not just those most likely to turn out with their votes and dollars….
Beyond triage for 2020, longer term change requires bolder thinking. We need a new social movement, that may take a generation or more, pushing a constitutional amendment protecting the right to vote. It would guarantee all adult citizens the right to vote in federal elections, establish a nonpartisan administrative body to run federal elections that would automatically register all eligible voters to vote, and impose basic standards of voting access and competency for state and local elections.
Talking of a constitutional amendment in the current polarized atmosphere may sound like a pipe dream when Congress cannot pass even basic voting rights protections, like restoring the part of the Voting Rights Act that the Supreme Court destroyed. But the current situation is untenable.
We need a 28th Amendment for voter equality around which people can organize and agitate. Organization could emulate the battle for passage of the 19th Amendment, which bars gender discrimination in voting. It took more than generation for that amendment to pass, and along the way activists for equal women’s suffrage got state legislatures to bolster voting rights and the public to change its attitudes about voting.
It has been 100 years since passage of the 19th Amendment and 150 since the passage of the 15th Amendment barring racial discrimination in voting. Despite those accomplishments, every national election features endless angst and litigation over assuring people the right to vote, which puts special burdens on those who already face the greatest barriers. We need to bring that struggle to an end and press forward toward a new voting rights amendment that would assure that our representatives truly reflect the will of the people.